Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000168
First-tier Tribunal No: HU/61505/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

30th April 2025

Before

UPPER TRIBUNAL JUDGE LANE

Between

Esmir Demaj
(NO ANONYMITY ORDER MADE)
Appellant
and

Secretary of State for the Home Department Respondent

Representation:

For the Appellant: Ms Tobin
For the Respondent: Ms Lecointe, Senior Presenting Officer

Heard at Field House on 24 April 2025

DECISION AND REASONS

1. The appellant is a male citizen of Albania. He appealed to the First-tier Tribunal against a decision of the Entry Clearance Officer dated 23 September 2023 refusing him entry clearance to the United Kingdom to join his wife (the sponsor). The First-tier Tribunal dismissed the appeal. The appellant now appeals to the Upper Tribunal.

2. The appellant had unsuccessfully claimed asylum in the United Kingdom on the basis of his claimed homosexuality. He is now married to a woman and claims that his sexuality has ‘changed.’ At [32] the First-tier Tribunal judge accepted that ‘he fact the appellant is currently in a committed heterosexual relationship necessarily means his previous claim to have been gay was untrue. Experience shows that sexuality is a spectrum.’ However, the judge found that the appellant’s relationship with his current wife had occurred at the same time as his claimed homosexuality and that the appellant had done nothing to notify the Secretary of State of his changed circumstances. The judge concluded that ‘the appellant deliberately chose not to disclose that he was now in a relationship with a woman and had reconciled with his father because he believed it would not assist him remain in the UK. I find it likely this was a deliberate attempt to mislead the respondent [34].’

3. Before the First-tier Tribunal, both parties agreed that the appellant could not succeed under the Immigration Rules because ‘the respondent was entitled, in the exercise their discretion, to conclude that the appellant had contrived in a significant way to frustrate the intention of the Immigration Rules and that there were also aggravating circumstances in his case’ as the judge recorded at [36]. The appeal proceeded on Article 8 ECHR grounds outside the rules only.

4. The grounds of appeal are narrow. Granting permission, Upper Tribunal Judge Ruddick wrote: ‘it is arguable that the FTTJ erred by failing to give weight to the public interest considerations outlined in PS (paragraph 320(11) discretion: care needed) India [2010] UKUT 440 (IAC) when deciding the weight to be given to the appellant’s poor immigration history, in the context of an application for entry clearance made following a voluntary departure from the UK.’

5. The Tribunal in PS at [14] found:

The Entry Clearance Officer, in making the decision of refusal, refers nowhere to the guidance under paragraph 320(11). It is therefore wholly unclear whether the Entry Clearance Officer has addressed his mind to the relevant question, namely whether in the circumstances of this case Mr S’s breach of UK immigration law was sufficiently aggravating so as to justify the refusal. It seems to us that the Entry Clearance Officer should have specifically recognised that Mr S had voluntarily left the United Kingdom more than 12 months ago with a view to regularising his immigration status. There was no question but that the marriage was a genuine one. If the aggravating circumstances are not truly aggravating there is in this context a serious risk that those in the position of Mr S will simply continue to remain in the United Kingdom unlawfully and will not seek to regularise their status as he has sought to do. The effect then is likely to be counter-productive to the general purposes of the relevant rules and to the maintenance of a coherent system of immigration. However, as explained, the Entry Clearance Officer in this case did not address the correct question and did not carry out an adequate balancing exercise under the guidelines. Furthermore, Mr S had made a claim under Article 8 which, standing alone, may not have been very strong. Nonetheless the family circumstances needed to be evaluated carefully in the balancing exercise to which we have referred.

6. Ms Tobin, for the appellant, noted that the judge had given a detailed analysis of the aggravating aspects of the appellant’s immigration history (viz. his absconding). To achieve a fair balance, she submitted that the judge should have given equal attention to the positive aspects of that history, namely the fact that the appellant had left the United Kingdom to apply for entry clearance from abroad.

7. In my opinion, PS can be distinguished from the circumstances of the appellant in the present appeal. First, the Tribunal in PS considered a version of the Immigration Rules which has subsequently been very considerably changed in the intervening years although I acknowledge that the general principle addressed at [14] of PS may remain relevant. Secondly, however, and unlike the decision maker (the Entry Clearance Officer) in PS, the judge in this instance did consider the fact that the appellant had voluntarily left the United Kingdom to apply for entry clearance from abroad. At [43], the judge wrote: ’the appellant’s representative argued that the fact the appellant agreed to return to Albania voluntarily in April 2023 should count in his favour. I accept that he is corporation (sic – presumably cooperation) entitled him to some limited credit. However, it is reasonable to infer that his decision was also motivated by a desire to avoid further time in detention. Overall, I consider I can give some limited way (sic – presumably weight) to this aspect of the appellant’s conduct.’

8. There is a significant difference between a decision maker failing to consider a relevant matter at all and referring and attributing weight to that matter, albeit briefly. In my opinion, what the judge has written at [43] is adequate. Ms Tobin submitted that the judge finding that the appellant was ‘entitled … to some limited credit’ did not indicate that he had also considered the effect of the voluntary return in diminishing the public interest. I reject that submission. The judge gave the appellant’s conduct ‘limited weight’; it is axiomatic that in doing so, the public interest was consequently diminished or counterbalanced in the Article 8 ECHR balancing exercise. There was no need for the judge to state that expressly.

9. There is no indication that PS was cited at the First-tier Tribunal hearing or that the judge was asked to do more than ‘count [the voluntary return] … in [the appellant’s] favour’ as the judge records the appellant’s representative having asked him to do. The judge clearly sets out those factors which had a positive, negative or neutral effect in the Article 8 ECHR analysis, including the voluntary return and his conclusion at [47] (‘looking at the evidence as a whole, balancing all the factors set out above, I have concluded that the public interest served by maintaining immigration controls clearly outweighs the appellant’s family life rights and those of the sponsor and that refusing his application for entry was a proportionate interference with his family life rights and those of the sponsor.’) was manifestly available to him on the evidence.

10. For the reasons I have given, the appellant’s appeal is dismissed.

11. Finally, I note that, when granting permission, Upper Tribunal Judge Roddick observed that ‘The FTT made an anonymity direction, but the reasons for that direction were not set out in the challenged decision. As a precautionary measure, the anonymity direction is continued unless and until the Upper Tribunal or a court orders otherwise. However, in the absence of an explanation for the need for anonymity, the appellant should be prepared to address the Upper Tribunal at the error of law hearing as to reasons that anonymity is appropriate in this case.’ I mentioned the Upper Tribunal Judge’s comments briefly to Ms Tobin but she made no submissions with regard to continuing the anonymity direction. Given the appellant’s circumstances, I can see no reason to continue such a direction so I discharge it forthwith.

Notice of Decision

The appeal is dismissed.

C. N. Lane

Judge of the Upper Tribunal
Immigration and Asylum Chamber

Dated: 24 April 2025